Ibarra v. Gastelum

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RAMON IBARRA, Plaintiff/Appellant,

v.

EDWARD EDDIE GASTELUM, Defendant/Appellee.

No. 1 CA-CV 19-0597
FILED 07-23-2020

Appeal from the Superior Court in Maricopa County
No. CV2016-011822
The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney (argued)
Co-Counsel for Plaintiff/Appellant

Gutierrez Law Firm, P.C., Phoenix
By Francisco X. Gutierrez
Co-Counsel for Plaintiff/Appellant

Law Office of Ilya E. Lerma, L.L.C., Phoenix
By Ilya E. Lerma
Co-Counsel for Plaintiff/Appellant

Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C., Tucson
By Andrew T. Apodaca, Christopher Enos (argued)
Counsel for Defendant/Appellee
 IBARRA v. GASTELUM
Opinion of the Court

OPINION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 Plaintiff Ramon Ibarra appeals from a jury verdict in favor of
defendant Edward Eddie Gastelum, the owner of the apartment where
Ibarra lived. Ibarra argues the superior court erred in denying his request
for a negligence per se jury instruction based on Gastelum’s alleged breach
of a statutory duty to keep the apartment in a fit and habitable condition.
Because the statute Ibarra relies on does not contain the specificity required
for a negligence per se jury instruction, the verdict is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Ibarra and his family lived in the same apartment for nearly
25 years. Over the years, a crack developed and grew in the bedroom floor
of Ibarra’s apartment. Ibarra attempted to cover or fill the crack, but was
not entirely successful. Gastelum purchased the apartment complex in
October 2014. At that time, the crack was about two inches wide with sharp
edges.

¶3 In December 2014, Ibarra stubbed and cut his left big toe on
the edge of the crack. Initially, Ibarra washed and bandaged his toe. After a
few days, he went to go see a physician’s assistant and later a wound clinic.
During a dozen visits over an extended period, the wound clinic cleaned
and treated the toe with antibiotics. Those treatments, however, were
unsuccessful. In June 2015, doctors amputated a portion of Ibarra’s toe.
Later that summer, Gastelum evicted Ibarra for failing to pay rent.

¶4 In December 2016, Ibarra sued Gastelum for negligence in
injuring his toe. At a three-day jury trial in May 2019, Ibarra testified that
he asked Gastelum “to look at some of the problems” with the apartment
when Gastelum purchased the complex. Ibarra said he told Gastelum about
his toe injury, but that Gastelum ignored him. Gastelum testified that the

1 This court views the evidence in a light most favorable to the party
requesting a jury instruction. Cotterhill v. Bafile, 177 Ariz. 76, 79 (App. 1993).

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Opinion of the Court

crack was unreasonably dangerous but denied ever seeing or hearing about
the crack before Ibarra injured his toe. Gastelum added he did not inspect
Ibarra’s apartment and that Ibarra never told him about the crack or his
injury.

¶5 Ibarra requested a negligence per se jury instruction based on
Gastelum’s statutory duty to keep the apartment in a fit and habitable
condition. The court denied that request, but instructed the jury on
negligence and premises liability. The jury found for Gastelum, the court
entered judgment and Ibarra timely appealed. This court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) Sections 12-120.21(A)(1) and -2101(A)(1) (2020).2

DISCUSSION

¶6 Ibarra argues the court committed reversible error by refusing
to give his requested negligence per se jury instruction. A court “must give
a requested instruction if: (1) the evidence presented supports the
instruction, (2) the instruction is proper under the law, and (3) the
instruction pertains to an important issue, and the gist of the instruction is
not given in any other instructions.” DeMontiney v. Desert Manor
Convalescent Ctr. Inc., 144 Ariz. 6, 10 (1985).

¶7 Negligence per se “describe[s] those instances where certain
acts or omissions constitute negligence without further inquiry [into] the
circumstances or reasonableness of their occurrence.” Deering v. Carter, 92
Ariz. 329, 333 (1962). Ibarra based his negligence per se jury instruction
request on A.R.S. § 33-1324(A)(2), which provides: “A landlord shall . . .
[m]ake all repairs and do whatever is necessary to put and keep the
premises in a fit and habitable condition.” If applicable, the requested
negligence per se instruction would have directed the jury that, if it found
Gastelum violated this statute, he was negligent (having breached a duty
owed) and the jury should “determine whether that negligence was a cause
of injury to” Ibarra. Gastelum argues the requested instruction was not
proper because the statute: (1) does not support such an instruction in a
personal injury action and (2) does not contain the specificity required for
a negligence per se instruction.

2 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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Opinion of the Court

¶8 Section 33-1324(A)(2) is part of Arizona’s Uniform Residential
Landlord and Tenant Act. See A.R.S. §§ 33-1301 to -1381. Ibarra presumes
that a violation of the Act could serve as the basis for a negligence per se
personal injury claim. The stated purposes of the Act, however, are to
define and simplify the law “governing the rental of dwelling units and the
rights and obligations of landlord and tenant” and to encourage both
landlords and tenants “to maintain and improve the quality of housing.”
A.R.S. § 33-1302. Remedies available under the Act focus on relief other
than personal injuries, such as possession, lease termination and payment
for repairs. See A.R.S. §§ 33-1361 to -1378. Nowhere does the Act mention
personal injury claims or remedies. Indeed, none of the cases cited by the
parties find the Act provides the basis for a personal injury claim.

¶9 Even if the Act could provide the basis for a negligence per se
personal injury claim, Section 33-1324(A)(2) does not do so. Negligence per
se is limited to situations involving a violation of a specific legal
requirement, not a general standard of care. To provide the basis for a
negligence per se claim, a statute “must proscribe certain or specific acts . .
. . Therefore, if a statute defines only a general standard of care . . .
negligence per se is inappropriate.” Hutto v. Francisco, 210 Ariz. 88, 91 ¶ 14
(App. 2005) (citations and quotations omitted); see also Griffith v. Valley of
Sun Recovery & Adjustment Bureau, Inc., 126 Ariz. 227, 229 (App. 1980)
(“Other jurisdictions have also limited the application of negligence per se
to statutes which express rules of conduct in specific and concrete terms as
opposed to general or abstract principles”) (citing cases). Applying this
analysis, Section 33-1324(A)(2) describes a general standard of care and
lacks the specificity required for negligence per se. These and other Arizona
opinions provide the analysis.

¶10 For example, Hutto concluded that a statute prohibiting a
person from knowingly driving or moving a vehicle when it “[i]s in an
unsafe condition that endangers a person” set forth a “general standard,”
not the specificity required for a negligence per se instruction. 210 Ariz. at
91 ¶¶ 13-14 (quoting A.R.S. § 28–921(A)(1)(a)). Hutto reasoned the statute
did “not create a sufficiently specific standard by which conduct is to be
measured. It provides only a general principle that vehicles must be safely
maintained, and does not specifically require safety belts.” Id. at 91 ¶ 13.
Similarly, Reyes v. Frank’s Serv. & Trucking, LLC, held that a statute
prohibiting “specified vehicular movements if they cannot ‘be made with
reasonable safety’ . . . establishes a ‘general standard of care,’” not the
specificity required for a negligence per se instruction. 235 Ariz. 605, 612-13
¶¶ 33, 35 (App. 2014) (construing California Vehicle Code § 22106; citations
omitted); accord Griffith, 126 Ariz. at 229 (holding statute that “authorizes

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repossession ‘if this can be done without breach of the peace,’ . . . does not
proscribe certain or specific acts” required for negligence per se) (quoting
A.R.S. § 44-3149). By contrast, Reyes suggested that a negligence per se
instruction was appropriate “based on California Vehicle Code § 21461(a),
which states, in essence, that it is unlawful for a driver to fail to obey a
regulatory sign or signal.” 235 Ariz. at 612 ¶ 33.

¶11 Notwithstanding these directives, Ibarra argues that
Gastelum’s obligations to “[m]ake all repairs” and “do whatever is
necessary” for the apartment to be “fit and habitable” under A.R.S. § 33-
1324(A)(2) are more specific than the statutes in Hutto, Reyes and Griffith.
Ibarra argues that the negligence per se jury instruction was warranted
because Section 33-1324(A)(2) “imposes a clear, understandable, positive
duty on the landlord to act. It does not impose an unclear, obscure, optional
standard of care.” The availability of a negligence per se claim, however,
does not turn on whether a “positive duty” exists, but whether the statute
required or prohibited a specific act. See Deering, 92 Ariz. at 333. Phrases
like “[m]ake all repairs,” “do whatever is necessary” and “fit and habitable”
describe generalized standards, not the “certain or specific acts” required
for negligence per se to apply. See Deering, 92 Ariz. at 333; accord Reyes, 235
Ariz. at 612 ¶ 34; Hutto, 210 Ariz. at 91 ¶¶ 13-14.

¶12 Ibarra seeks to define “habitable” as requiring that the
residence be “reasonably suited for its intended use.” Nastri v. Wood Bros.
Homes, Inc., 142 Ariz. 439, 444 (App. 1984). That definition, however, is a
generalized standard, without the specificity required for negligence per se.
Indeed, Reyes found that such a standard, particularly the “reasonably”
qualifier, could not provide the basis for a negligence per se claim. 235 Ariz.
at 613 ¶ 35. Simply put, the Section 33-1324(A)(2) obligations do not provide
the specificity required for a negligence per se claim or jury instruction.

¶13 Ibarra quotes Schaefer v. Murphey, 131 Ariz. 295, 298 (1982) for
the proposition that, because the Act “sufficiently defines ‘fit and habitable’
to include maintenance of plumbing facilities in good and safe working
order,” “fit and habitable” must include a floor without a significant crack.
Schaefer, however, addressed a tenant’s claim under the Act for expenses
incurred due to the landlord’s failure to provide a habitable dwelling, not a
negligence per se claim. Id. at 297-98. In concluding that the tenant could
seek money damages under the Act for an inoperable toilet “materially
affecting health and safety,” Schaefer mentioned Section 33-1324(A)(2) but
relied on the obligation in Section 33-1324(A)(4) that a landlord “[m]aintain
in good and safe working order all electrical, plumbing, sanitary, heating,
ventilating, air-conditioning and other facilities and appliances, including

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Opinion of the Court

elevators, supplied or required to be supplied by” the landlord. Id. Here, by
contrast, Section 33-1324(A)(4) is not at issue. Finally, although Ibarra also
cites Schaefer as defining “habitable,” Schaefer disavowed doing so, stating
“an interpretation of the term ‘habitable’ is not required for the purpose of
this case.” Id. at 298. For these reasons, Schaefer does not apply here.

¶14 Finally, Ibarra argues that the negligence per se instruction
was required “because habitability and fitness are fundamentally questions
of fact.” However, there is no error when the substance of a rejected jury
instruction is adequately addressed by other instructions that were given.
See DeMontiney, 144 Ariz. at 10. Here, the court correctly instructed the jury
on negligence and premises liability. The premises liability instruction
stated that “[i]f you find that Edward Gastelum had notice of the
unreasonably dangerous condition and failed to use reasonable care to
prevent harm under the circumstances, then Edward Gastelum was
negligent.” The jury instructions given adequately addressed negligence
and premises liability, including a landlord’s duty of care to a tenant.

CONCLUSION

¶15 Because Ibarra has shown no error, the judgment is affirmed.
Because Ibarra is not the successful party, his request for costs under A.R.S.
§§ 12-341 and -342 is denied. Gastelum is awarded his taxable costs on
appeal contingent upon his compliance with Arizona Rules of Appellate
Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: HB

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